Massachusetts House Bill 1399

Summary

Massachusetts H.B. 1399 would require any person or entity that enters into a contract with a “defendant” for anything of value derived from a “unique knowledge or notoriety acquired by means and in consequence of commission of a crime” must submit the contract to the state Attorney General’s office and post a bond equal to the value of the contract.

The Attorney General then determines if the contract was entered into for the “unique knowledge” of the crime or “notoriety” related to it. If the Attorney General deems that it is, the state keeps the bonded money to pay any civil damages related to the crime. After all claims are paid, the state is entitled to keep 50 percent of the balance of the bond for the victim compensation fund. The other half is to be returned to the contracting party.

A “defendant” is defined as anyone charged with or convicted of a crime or has voluntarily admitted to having committed the crime. Failure to do so is subject to a civil penalty equal to the value of the contract. If the failure is willful, it is subject to a civil fine of up to three times the value of the contract.

Status

The bill is in the Joint Committee on Judiciary.

Analysis

This bill is very similar to Massachusetts Senate Bill 1939, introduced in 1991 after the U.S. Supreme Court struck down New York’s “Son of Sam” law. In 2001, the Senate asked the Supreme Judicial Court of Massachusetts to give an advisory opinion on whether S.B. 1939 violated the First Amendment. In a 2002, the court said “yes,” finding that it is an impermissible content-based restriction on speech because it fails the strict scrutiny analysis.

The court found that the bill is overbroad and not narrowly tailored to meet a compelling state interest. It was significantly overinclusive because it was not limited to only those who have been convicted of a crime. The court also found there was a substantial chilling effect on certain speech because the legislation creates a “financial disincentive” to speaking on both the author and the publisher.

The key provisions of H.B. 1399 are substantively the same as S.B. 1939. There are no elements of H.B. 1399 that would alter the analysis of the court.

History

On January 20, 2015, the bill was introduced [3] and referred to the Joint Committee on Judiciary.